DISSENTING OPINION I am unable to agree with the majority opinion in this case for the following reasons:
In the first 10 rhetorical paragraphs of the answer the defendant states that she admits, denies, or is without information as to the facts stated in each rhetorical paragraph of the complaint, and this is done without enlargement or elaboration. It therefore constitutes a good answer under rule 1-3 of our court.
Rhetorical paragraph 11 pleaded lack of consideration; 12 pleaded payment; 13 and 14 pleaded misrepresentation and fraud, and 15 pleaded set off. This made *Page 298 the answer irregular and subject to a motion to paragraph and number. §§ 2-1006, 2-1015, Burns' 1946 Replacement; Rule 1-3,supra. But the plaintiff did not file a motion to require the defendant to paragraph and number her separate defenses and thereby he waived this irregularity. The only pleading filed by the plaintiff to test the answer was a motion to reject and strike it out for the reason it was "not such a pleading as is recognized by the code or rules of the Supreme Court of the State of Indiana." The trial court sustained this motion and struck out the answer.
Our code — § 2-1054, Burns' 1946 Replacement — so far as applicable to this motion provides:
"An answer or other pleading shall be rejected as sham, either when it plainly appears upon the face thereof to be false in fact and intended merely for delay, or when shown to be so by the answers of the party to special written interrogatories propounded to him to ascertain whether the pleading is false; . . ."
The answer clearly discloses on its face that it is not sham, but that it is quite real and factually true. It does not attempt to simulate, to feign, to make pretense of, or to obtrude by fraud or imposition. Under our code and the repeated decisions of our courts entire pleadings may be rejected or stricken out only when it clearly appears that they are sham, false in fact and merely intended for delay. Fort v. Williams (1855),6 Ind. 219, 221; Mabin v. Webster (1891), 129 Ind. 430, 431, 432, 28 N.E. 863; The Chicago and Atlantic Ry. Co. v. Summers (1887),113 Ind. 10, 14, 15, 16, 14 N.E. 733; Atkinson v. Wabash R.R.Co. (1895), 143 Ind. 501, 507 to 510, 41 N.E. 947; Guthrie v.Howland (1905), 164 Ind. 214, 216, 221 to 225, 73 N.E. 259;Hart v. Scott (1907), 168 Ind. 530, 532, 81 N.E. 481; *Page 299 Moorhouse v. Kunkalman (1911), 177 Ind. 471, 480, 481, 96 N.E. 600; Faylor v. Brice (1893), 7 Ind. App. 551, 555, 556, 34 N.E. 833; Flanagan Indiana Pleading Procedure, § 119, Com. 1.
I find no factual basis in the record for a statement that "The court treated the sustaining of the motion to strike as if it were a motion to separate." Had it been so treated, the order on sustaining it must necessarily have been that the defendant separately paragraph and number his defenses. Such an order would have agreed with the code, §§ 2-1006, 2-1015, Burns' 1946 Replacement, and with our rule, 1-3. After the answer was stricken, the court's order was that the defendant plead further — a proper order only on sustaining a demurrer. §§ 2-1010, 2-1013, Burns' 1946 Replacement. Appellee admits that a motion to strike can not properly be treated as a demurrer, but evidently the lower court so treated it in this case, and this is reversible error.
I know of no authority authorizing the striking out of a pleading, because it is "not such a pleading as is recognized by the code or rules of the Supreme Court of the state of Indiana." An answer is a pleading recognized by both the code of the state — § 2-1003, Burns' 1946 Replacement, and the rules of our court — Nos. 1-1, 1-2, and 1-3.
The sufficiency of the answer can not be tested by the motion to strike out. If it is not clearly a sham answer on its face, and contains pertinent matter of defense, which even if insufficient to constitute a defense might be made sufficient by amendment, it is reversible error to strike it out. Fort v.Williams, supra; Guthrie v. Howland, supra; Hart v. Scott,supra.
Appellant was grievously harmed by the erroneous ruling of the trial court. She had a right to save the *Page 300 question, and present it on appeal. Having filed an answer containing all her defenses, and it having been stricken out on motion of the plaintiff, she could hardly presume that if she filed it again, even in a different form but containing the same facts, it would not suffer a similar fate. Since only sham pleadings may be stricken out, appellant had a right to think the trial court believed her several defenses were each sham and that they would be again stricken if filed.
In the case of Wohadlo v. Fary (1943), 221 Ind. 219,46 N.E.2d 489 as the pertinent reason for sustaining the action of the lower court in striking out two paragraphs of complaint, this court said:
"The first paragraph seeks to review and vacate for errors of law a judgment in partition. It was not filed within one year from the date of the judgment." . . .
"The proper procedure to test the sufficiency of these paragraphs of complaint would have been by demurrer which if filed should certainly have been sustained. Instead they were stricken out on motion. The first paragraph clearly was an action under § 2-2605, Burns' 1933, and required by statute to be filed within a year from the date of the judgment. No amendment could have set back the clock. The second paragraph is not substantially different from the first and is subject to the same rules."
For the reasons given, evidently these pleadings showed upon their face that they were sham, and for that reason the action of the trial court in sustaining a motion to strike them out was affirmed. No such fault can be found in the stricken answer in the instant case.
After the answer was stricken appellant obtained additional time in which to plead further, but she did not do so. Securing additional time in which to plead *Page 301 further was in no sense a waiver of the error in the ruling to strike out the answer.
For the error in striking out a legally sufficient answer the judgment should be reversed.
NOTE. — Reported in 73 N.E.2d 853.